United States District Court, W.D. Tennessee, Western Division
MODIFYING THE DOCKET, ADOPTING IN PART AND MODIFYING IN PART
REPORT AND RECOMMENDATION, DISMISSING COMPLAINT WITH
PREJUDICE, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN
GOOD FAITH, DENYING LEAVE TO APPEAL IN FORMA PAUPERIS AND
DENYING MOTION FOR APPOINTMENT OF COUNSEL
H. LIPMAN, UNITED STATES DISTRICT JUDGE.
the Court are Magistrate Judge Charmiane G. Claxton's
(“Magistrate Judge”) Report and Recommendation
(“R&R”), filed April 24, 2019, granting
Plaintiff Joshua Mallory leave to proceed in forma
pauperis and recommending that the Court dismiss Mr.
Mallory's pro se Complaint for failure to state
a claim upon which relief may be granted, and certifying that
an appeal would not be taken in good faith, (ECF No. 6), and
Mr. Mallory's “Statement of What Happened, ”
which the Court construes as his objections to the R&R,
filed May 16, 2019, (ECF No. 8). Also pending before the
Court is Mr. Mallory's pro se Motion for
Appointment of Counsel, filed May 16, 2019. (ECF No. 7.) For
the following reasons, the R&R is ADOPTED IN PART
AND MODIFIED IN PART, and Mr. Mallory's
Complaint is DISMISSED WITH PREJUDICE.
Furthermore, the Court CERTIFIES that an
appeal would not be taken in good faith, and thus leave to
appeal in forma pauperis is DENIED.
Finally, the Motion for Appointment of Counsel is also
Mallory filed a pro se Complaint and Motion for
Leave to Proceed In Forma Pauperis with supporting
affidavit on April 23, 2019. (ECF No. 1, 2.) Pursuant to
Administrative Order 2013-05, this matter was automatically
referred to the Magistrate Judge, who granted the Motion for
Leave to Proceed In Forma Pauperis. (ECF No. 6 at
Complaint alleges that, “[b]etween 1992-1994, ”
Defendants discriminated against Mr. Mallory on the basis of
his race. He was employed by Defendant Middle Tennessee
Mental Health (“MTMH”), but he alleges that
Defendants failed to promote him and terminated him. (ECF No.
1 at PageID 3.) Specifically, he alleges that they fired
him when “[a] white woman” wrongfully accused him
of abusing a MTMH patient whom he “push[ed] . . . out
of the way” when the patient attacked him, resulting in
his termination without “rehire rights.”
(Id. at PageID 4, 15.) The Complaint also states
that Mr. Mallory has exhausted his administrative remedies
with the Tennessee Human Rights Commission and Equal
Employment Opportunity Commission (“EEOC”), has
obtained a Right to Sue letter and requests a jury trial.
(Id. at PageID 5.) He seeks reinstatement,
promotion, back pay and compensatory damages of an
unspecified amount, and nondescript equitable relief,
pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (Id. at PageID
R&R recommends dismissal of the Complaint for failure to
state a claim upon which relief may be granted for two chief
reasons: (1) the Complaint fails to establish a prima facie
case for discrimination, and (2) Mr. Mallory failed to timely
exhaust his administrative remedies. (See generally
ECF No. 6.) In his objections to the R&R, Mr. Mallory
reiterates that he was fired for an incident in which he was
defending himself from an attacking patient. He tried to
memorialize what happened at the time, but there was no video
evidence, and MTMH believed several white people's word
against his. (See ECF No. 8 at PageID 37-39.) He
accuses his former employers and colleagues of racism, states
that he became homeless and suffered mental anguish as a
result of his termination, and alleges that he has been
unable to obtain a job or admission to graduate school
because he is not eligible for rehire at MTMH. (Id.
at PageID 38- 39.)
Mallory also explains that he did not approach the EEOC until
now because he did not know it existed, and would have filed
a complaint years ago if had known of this avenue for relief.
(Id. at PageID 39.) Mr. Mallory demands that his
case be “reviewed precisely and for what is right and
just, ” that “anything that is untrue and
defaming to [his] character be removed from [his employment]
history” and that he receive a nondescript
“promotion.” (Id. at PageID 39-40.) In
the alternative, Mr. Mallory asks the Court to “direct
[him] to where [else he] need[s] to go” for relief.
(Id. at PageID 40.)
magistrate judge may submit to a judge of the court
recommendations for the determination of certain pretrial
matters. 28 U.S.C. §§ 636(b)(1)(A)-(B).
“Within 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific
written objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2); see
also 28 U.S.C. § 636(b)(1). A district court
reviews de novo only those proposed findings of fact
or conclusions of law to which a party specifically objects.
Fed.R.Civ.P. 72(b)(2); see also Fed.R.Civ.P.
72(b)(3). After reviewing objections, a district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations” of the magistrate
judge. 28 U.S.C. § 636(b)(1)(C). “A general
objection that does not identify specific issues from the
magistrate's report, ” on the other hand, “is
not permitted because it renders the recommendations of the
magistrate useless, duplicates the efforts of the magistrate,
and wastes judicial economy.” Johnson v.
Brown, No. 13-242-GFVT, 2016 WL 4261761, at *1 (E.D. Ky.
Aug. 12, 2016) (citing Howard v. Sec'y of Health and
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
initial matter, the R&R recommends dismissal of
“Ms. Thompson” as a named party because
“Title VII only applies to employers and not to
individual supervisors.” (ECF No. 6 at PageID 27 n.2.)
Indeed, “the statute as a whole, the legislative
history and the case law support the conclusion that Congress
did not intend individuals to face liability under the
definition of ‘employer' it selected for Title
VII.” Wathen v. Gen. Elec. Co., 115 F.3d 400,
406 (6th Cir. 1997). The Court ADOPTS the
R&R as to this issue and DISMISSES
“Ms. Thompson” from the case. However, the
R&R does not address Defendant Gloria Britton. To that
end, the R&R is MODIFIED, and Mr.
Mallory's claims against Ms. Britton are similarly
as to a prima facie discrimination case, the Magistrate Judge
found that Mr. Mallory failed to allege that he was qualified
for his position or that similarly situated nonprotected
employees were treated more favorably than he was, or that he
was replaced by someone outside his protected class. (ECF No.
6 at PageID 30.) Indeed, to establish a Title VII claim prima
facie, “a plaintiff must demonstrate (1) that he is a
member of a protected class; (2) that he suffered an adverse
employment action; (3) that he was qualified for the
position; and (4) that a similarly-situated employee outside
the protected class or classes was ...